Southwest Cotton Co. v. Clements

• Citation: 25 Ariz. 169,215 P. 156
• Decision Date: 15 May 1923
• Docket Number: Civil 2064
• Parties: SOUTHWEST COTTON COMPANY a Corporation, Appellant, v. FRED CLEMENTS, an Infant, by JOHN H. FOSTER, Guardian ad Litem, Appellee
• Court: Supreme Court of Arizona

215 P. 156

25 Ariz. 169

SOUTHWEST COTTON COMPANY a Corporation, Appellant, v. FRED CLEMENTS, an Infant, by JOHN H. FOSTER, Guardian ad Litem, Appellee

Civil No. 2064

Supreme Court of Arizona

May 15, 1923

ON MOTION FOR REHEARING.

For former opinion, see ante, p. 124, 213 P. 1005.

Motion for rehearing. Motion denied.

Mr. G P. Nevitt and Mr. J. B. Ogg, for Appellant.

Mr Joseph Hansen and Mr. R. N. French, for Appellee.

OPINION

ROSS, J.

The appellant in its motion for a rehearing, after reminding us that we had held this instruction, "The jury are instructed that the defense of contributory negligence is not available against a child or one not having attained the years of discretion," did not correctly state the law proceeds to show us from the record that, contrary to our conclusion, this instruction must have been given to the jury. The contention is based upon the fact that it appears as a part of the reporter's transcript and is certified by the judge as correct, and upon the further fact that appellee's counsel did not, orally or in brief, suggest that it was not given to the jury.

The dubious condition of the record, recited by us in our opinion, caused us to adopt the course of reasoning we did in order not to convict the court of error, but in that we may have been, and probably were, mistaken. We will examine the instruction, in connection with the evidence, upon the assumption that it was given and see if it so affects the situation as to call for a different result or conclusion.

The instruction was clearly erroneous and should not have been given. It is not correct as an abstract proposition of law, and certainly is not correct as applied to the facts of this case.

This court has held that negligence cannot be imputed to a child four years and four months old (De Amado v. Friedman, 11 Ariz. 56, 89 P. 588), but this arbitrary rule could not reasonably be extended to a child of twelve years of age. A child of the latter age may be, by reason of his knowledge, association, experience, training and education, quite as appreciative of the effects of any given action, conduct or movement as a person of more mature mind and years. So as each case arises it must depend upon its own facts and circumstances. No hard-and-fast rule has been, or can be, laid down, based upon age alone. The criterion is intelligence, knowledge and experience. Baker v. Seaboard Air Line Ry. Co., 150 N.C. 562, 17 Ann. Cas. 351, and note, 29 L.R.A. (N.S.) 846, 64 S.E. 506; Schoonover v. Baltimore & O. R. Co., 69 W.Va. 560, Ann. Cas. 1913B, 964, L.R.A. 1917F, 1, 73 S.E. 266. In the last case it is said:

"The standard or measure of duty in each case is determined by the capacity ordinarily possessed and exercised by children of the age and development of the class to which the individual belongs."

But a misstatement to the jury of a proposition of law does not always call for a reversal. If its effect, or probable effect, is to mislead the jury, to the injury of the complaining party, it would be prejudicial and should not be passed. If under no conceivable view it could mislead the jury, to the prejudice of the complaining party, it should not be treated as reversible error.

While the appellant's answer pleaded the plaintiff's contributory negligence, and thus nominally put it in issue, it was not supported by any evidence. On the trial all of the appellant's efforts were directed to trying to show that it did not leave the dynamite cap where plaintiff found it, or that plaintiff was a trespasser or licensee to whom it owed no duty. The appellant did not tender, specifically, one iota of evidence in support of its plea of contributory negligence and, unless plaintiff's evidence shows that he did not use the care and caution a person of his age, education, mental and physical capacity ordinarily would have used under like circumstances, there is no evidence on the issue of contributory negligence.

In most of the cases growing out of injuries caused by explosives left exposed so as to fall into the hands of children, the latter have had sufficient experience and knowledge to know that such explosives would explode and make great noises if thrown against something, or if struck with a rock or other hard substance, and yet this knowledge has not defeated recovery, for the very good reason that it is a well-known fact that such children were doing what children generally do under like circumstances. In such cases, however, the evidence would require the submission of the issue, under proper instructions, to the jury, because such knowledge and experience would carry the implication that the child also knew the explosives to be dangerous. This knowledge and familiarity with the explosives would be some evidence bearing on the issue.

From the plaintiff's testimony, we judge him to be a boy of average intelligence. So far as the evidence goes, he had never seen a dynamite cap until he found this one. He did not know what it was, but thought it was intended as a pencil guard, and, laboring under that belief, attempted to force it on to the end of his pencil. There is nothing in the evidence showing, or tending to show, that plaintiff had ever had any experience with dynamite or its use, or that he had ever had any opportunity to know of its dangerous character. The only evidence on that point is what he did with the cap, and that convinces us that he was wholly and densely ignorant of its dangerous character. To his inexperienced mind it was as inoffensive and innocuous as any ordinary piece of metal found lying in the open. Appellant did not cross-examine or otherwise attempt to show that plaintiff knew or should have known the innocent looking little thing that he had recently picked up was in fact loaded with dynamite, or a fulminating substance more sensitive and more powerful than dynamite.

As is said in 20 R.C.L. 94, section 83:

"It is no doubt true as a general proposition that explosives embody a danger that is beyond the knowledge and appreciation of young children."

In this case the danger was a...